The ICC and Côte d’Ivoire: Is Justice Being Dispatched?

In December 2010, Luis Moreno-Ocampo, then Prosecutor of the International Criminal Court (ICC), warned protagonists of the post-election crisis in Côte d’Ivoire that “[t]hose leaders who are planning violence will end up in The Hague.” In November 2011, Laurent Gbagbo arrived in The Hague, his transfer to the ICC seen as diffusing tensions after his arrest in April by forces loyal to the internationally recognized winner Alassane Ouattara. Gbagbo was joined by his Minister of Youth, Charles Blé Goudé, in 2014. Having fled to Ghana, Blé Goudé was extradited to Côte d’Ivoire, which sent him to the ICC. At the time, Côte d’Ivoire was not party to the Rome Statute but the country accepted the ICC’s jurisdiction through an Article 12 (3) declaration, reconfirmed in 2010.

Yet, by the time the trial commenced in January 2016, the Ivorian justice system was functioning. Ouattara declared no more Ivorians would be sent to the ICC, insisting on trying Simone Gbagbo at home despite losing an admissibility challenge before the Pre-Trial Chamber, upheld by the Appeals Chamber.

The acquittal of Laurent Gbagbo and Blé Goudé in the ruling on no case to answer of 15 January 2019 spotlights the OTP’s investigation in the Côte d’Ivoire situation. As a written decision is forthcoming, this article will not examine the trial. Rather, it looks at the perception of the ICC at the local level and how it compares to and impacts national justice processes. 

During my research in Côte d’Ivoire, I had the privilege to interview Ivorians from different parts of the country, including victims, witnesses, judges, prosecutors, defense counsel and civil society. Views about the ICC and domestic accountability efforts are polarized. Some strongly support the ICC and maintain high expectations that may now be impossible to meet, while others are adamant Ivorians should be tried by Ivorians, however imperfect the justice.

For many, the ICC has lost credibility. Those who followed the Gbagbo and Blé Goudé trial share concerns as to how it was conducted, from procedural changes, to the OTP’s witnesses turning hostile, suffering memory loss or providing hearsay evidence with low probative weight. Further, the OTP’s sequenced approach­––necessary for securing state co-operation given the limitations of the Part 9 regime––with as yet no public arrest warrants released against supporters of Ouattara who are also suspected of committing crimes during the crisis, has increased the perception of the Court as an instrument for victor’s justice. This credibility deficit has weakened its impact. Early positive developments included domestication of the Rome Statute, with the incorporation of crimes against humanity, war crimes and genocide into the Ivorian Penal Code in 2015. However, as public perception decreased, related reforms important for local accountability efforts stalled, in particular, a law on witness protection; fortunately, it was passed by the National Assembly in early 2018 but is still to enter into force.

Unfortunately, there has been inadequate reverse co-operation, with requests to the ICC for the exchange of evidence to facilitate domestic investigations substantively unanswered. Further, Côte d’Ivoire lacks technical capacity for DNA and ballistics analysis, with resource limitations among the factors delaying further exhumations. While the OTP has lent some assistance, it would be mutually beneficial to go further. Domestic inquiries are also hampered by witness fatigue, with some witnesses reluctant to co-operate with a Special Investigation Unit (CSEI) after already giving testimony to the ICC and other domestic transitional justice mechanisms previously operating in parallel, including the National Commission of Inquiry (CNE), Commission for Dialogue, Truth and Reconciliation (CDVR), and National Commission for Reconciliation and Reparation of Victims (CONARIV). Other ICC witnesses declined to testify in local trials to avoid media exposure.

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ICC unseals two new arrest warrants

Yesterday, the ICC unsealed a third arrest warrant in the Ivory Coast situation, against Mr. Charles Ble Goude. The first two arrest warrants to be unsealed in the Ivory Coast situation  are arrest warrants against former President, Laurent Gbagbo (presently in ICC costudy) and against Simone Gbagbo (for whom the Ivoirian government hasapparently  issued a challenge to admissability, asking to try Ms. Gbagbo in Cote d’Ivoire).

The arrest warrant against Charles Ble Goude was issued as early as 21 December 2011, only a few months after the opening of investigations, for ‘indirect co-perpetration’ under Article 25(3)(a) for his alleged role in instructing and training the patriotic youth, who allegedly took part in post-election violence in Cote d’Ivoire, against anyone suspected of supporting Alassane Ouattara.

The arrest warrant was unsealed yesterday (1 October 2013) after news coverage quoted the Minister of Justice, Gnenema Mamadou Coulibaly who apparently reported such an arrest warrant existed.

The arrest warrant was issued by Judges Sylvia Fernandez de Gurmendi, Elizabeth Odio Benito and former ICC Judge Adrian Fuldord. Interestingly, in paragraph 16 of the arrest warrant the Pre-Trial Chamber states:

“16. Although the Chamber is satisfied that this substantial test (as proposed by the Prosecution), is made out, it is likely that this issue {i.e. Mr Blé Goudé’s suggested liability as an “indirect co-perpetrator” under Article 25(3)(a) of the Statute) may well need to be revisited in due course with the parties and participants.”

Mr Ble Goude is presently in custody in Cote d’Ivoire.

The ICC unsealed an additional arrest warrant today in the Kenya case against William Samoei and Joshua Arap Sang. The arrest warrant is against Mr. Walter Osapiri Barasa, issued on 2 August 2013 by Single Judge Cuno Tarfusser, for allegedly corrupting and attempting to corruptly influence witnesses.

One may recall at this point that the Prosecutor, Ms. Fatou Bensouda requested to withdraw her case against Francis Kirimi Muthaura mainly because of serious witnesses issues.